Related case:
CAS 2018_A_6069 André Cardoso vs UCI
February 10, 2021
In June 2017 the International Cycling Union (UCI) has reported an anti-doping rule violation against the Portuguese Rider André Cardoso after his A-sample tested positive for the prohibited substance rhEPO. However the Rider’s B-sample did not confirm the test result of the A-sample, nor the analysis of his blood sample provided on the same day as the urine sample on 18 June 2017.
With these results in his favour the Athlete, supported by an expert witness, sought to annul the A-sample analysis result. The UCI sought scientific confirmation that the A-sample reliably identified rhEPO and that there was a satisfactory explanation for the lack of confirmation in the B-sample.
On 16 January 2018, UCI submitted to the Rider an Acceptance of Consequences (AoC) proposal according to Article 8.4 of the UCI ADR. UCI enclosed three further scientific reports supporting the terms of the proposed AoC, in order for the Rider to make an informed decision:
- a report rejecting the Rider’s accidental swap scenario (the Second Laboratory Report),
- a second report addressing the Rider’s allegation that microbial degradation could have caused his AAF, the reasons behind the lack of confirmation of the presence of rhEPO in the Rider’s B-sample and why his blood serum sample had not tested positive for rhEPO (the Second Seibersdorf Opinion) and
- a report by Prof. Hugues Henry and Dr. Martial Saugy which comprehensively addressed Athlete’s expert witness’ developments on possible metabolism disorders of the Rider and ruled them out as a possible cause for his positive A-sample (the Henry/Saugy Report).
The Athlete rejected the AoC in January 2018 and the UCI referred the case to the UCI Anti-Doping Tribunal (UCI-ADT).
Without a hearing a decision was rendered by the UCI-ADT Sole Arbitrator on the basis of the written submissions.
The Rider requested to lift his provisional suspension and argued there is no ADRV since the A-sample analysis was not confirmed by the B-sample analysis and thus cannot establish the use of a prohibited substance. In any case, the A-sample analysis is not reliable enough according to his expert witness’ Opinions as there are many causes that can explain the presence of rhEPO in the Rider’s A-sample in the present case.
The UCI requested to impose a sanction on the Rider for the Use of rhEPO. The UCI contended that the ADRV has been established on the basis of reliable evidence and none of the explanations offered by the Rider can explain the presence of rhEPO in his system, in particular considering the fact that the Rider has not responded to or addressed the latest scientific evidence provided to him by the UCI.
The evidence before the Tribunal, which was not rebutted by the Rider, shows to the comfortable satisfaction of the Sole Arbitrator that the existence of a blood sample negative for rhEPO does not exclude the possibility that a urine sample collected by the same rider on the same day may test positive for rhEPO. Therefore, the Rider’s argument that the result of his blood test directly challenges the reliability of the A-sample result, is rejected as unfounded.
The Sole Arbitrator is comfortably satisfied by the assessment of the evidence at hand that the conditions established by Article 2.2 of the UCI ADR (and the comment thereto) which allow a Use ADRV to be established based upon
(a) reliable analytical data from the analysis of an A-sample alone (without confirmation from an analysis of a B-sample) and
(b) where the prosecuting authority provides a satisfactory explanation for the lack of confirmation in the other sample,
are satisfied in this matter.
Moreover, the Sole Arbitrator deems that the Rider has failed to substantiate that the presence of rhEPO in his A-sample resulted from an accidental swap of samples or a congenital/ethanol-induced disorder or a microbial activity. Therefore, the Single Judge concludes that the Rider has committed an ADRV under Article 2.2 of the UCI ADR.
Therefore the UCI Anti-Doping Tribunal decides on 15 November 2018:
1.) Mr. André Cardoso has committed an Anti-Doping Rule Violation (article 2.2 UCI ADR).
2.) Mr. André Cardoso is suspended for a period of ineligibility of four (4) years commencing on the date of this Judgment, i.e. on 15 November 2018.
3.) The provisional suspension already served by Mr. André Cardoso, starting from 27 June 2017, shall be credited against the four-year period of Ineligibility.
4.) The results obtained by Mr. André Cardoso between 18 June 2017 and 27 June 2017, if any, are disqualified.
5.) Mr. André Cardoso is ordered to pay to the UCI a monetary fine.
6.) Mr. André Cardoso is ordered to pay to the UCI:
- a.) the amount of CHF 2'500 for costs of the results management;
- b.) the amount of CHF 510 for costs of the B-sample analysis;
- c.) the amount of CHF 600 for costs of the A and B Sample Laboratory Documentation Packages; and
- d.) the amount of CHF 1'500 for costs of the out-of-competition testing.
7.) (…).
8.) (…).
